UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
Criminal No. 84-255
Judge Joyce Hens Green
Motions Hearing and Trial:
ELLEN B. THOMAS
MOTION TO DISMISS INFORMATION
FOR DESTRUCTION OF EVIDENCE
Defendant, Ellen Thomas, through undersigned counsel, respectfully requests that this Honorable Court, enter an order pursuant to Rule 16(d)(2) of the Federal Rules of Criminal Procedure dismissing the above-entitled case as a result of the government's destruction of lawfully discoverable evidence material to the preparation of the defense, despite the defendant's specific requests for preservation of the evidence for defense examination.
In support of this motion, defendant states the following:
1. Following defendant's arrest on June 6, 1984 for "camping" in violation of 36 C.F.R., Sections 50.5 and 50.27, the defense specifically requested of the government preservation of the camera and film therein, seized from Ellen Thomas, for defense examination. The requests were made informally and by letters from the undersigned on June 22, 1984 and from codefendant's counsel, Paul Leder, on June 13, 1984.1
2. The subject camera was being used by Ellen Thomas to record the instant arrest at the time of its seizure by the arresting officer, David Haynes.
3. The government took no steps toward preservation of the camera and film, and both are reportedly lost, despite the retention of dozens of other items of property.
4. The film within the camera would have revealed the locations and appearances of defendants and property in this case at the time of arrest. If nothing else, this property was discoverable as a tangible object seized from the defendant, pursuant to Federal Rule of Criminal Procedure 16(a)(1)(C).
5. Rule 16(d)(2) of the Federal Rules of Criminal Procedure provides the following remedies for nondisclosure of discoverable evidence: (1) an order of discovery; (2) the grant of a continuance; (3) suppression; (4) other appropriate relief. Of the remedies, the relief of dismissal is the most appropriate since the defendant's discovery request cannot now be satisfied, the evidence is highly material and the destruction of the evidence constitutes gross misconduct, if not deliberate destruction.
WHEREFORE, and for the reasons set forth in the accompanying Memorandum of Points and Authorities, it is respectfully requested that the information be dismissed.
1. Attached, respectively as Appendices A and B.